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Set Down for Trial & Estoppel

QH Renovation & construction Corp. v. 2460500 Ontario Ltd. 2019 Ont SCJ (MC)

Under section 37 of the Construction Act, a plaintiff must set down an action for trial or obtain an order for the trial of the action within 2 years of the date on which the lien is perfected. The plaintiff was 13 days late in doing so, but had set down the action 3 days before the deadline in a consent timetable order. The plaintiff argued that the consent order reflected an agreement to extend the prescribed time. The Master noted that in his original timetable order, he did not consider the Construction Act nor did he even know that the matter was a construction matter. He held that the provisions of section 37 and 46 of the Construction Act are mandatory with no room for judicial discretion – even if he accepted the argument that there had been an agreement to extend the time, which he did not. This decision made no reference to promissory estoppel (see J.D. Strachan Construction Limited v. Egan Holdings Inc. 2019 Ont SCJ, which held that promissory estoppel could apply to a time limit by which a lien claimant had to perfect a claim for lien). We prefer the QH decision.

Written by Jonathan Speigel, the founding partner of Speigel Nichols Fox LLP, leads the litigation and construction practices.